Last month, former President Donald Trump scored a rare victory in court. He successfully petitioned a federal district court for an independent third party to review his records seized by the current Justice Department.
The Justice Department appealed the case, and Trump lost.
But Trump’s not giving up. He just took the case all the way to the U.S. Supreme Court.
Lawyers for the former president asked the Supreme Court on Tuesday to step into the legal fight over the classified documents seized during an FBI search of his Florida estate, escalating the dispute over the powers of an independent arbiter appointed by the lower, district judge.
The Trump team asked the Supreme Court justices to overturn a lower court ruling and allow the arbiter, called a special master, to review the roughly 100 documents with classification markings that were taken in the Aug. 8 search of Mar-a-Lago.
A three-judge panel from the Atlanta-based U.S. Court of Appeals for the 11th Circuit last month limited the special master’s review to the much larger tranche of non-classified documents. The judges, including two Trump appointees, sided with the Justice Department, which had argued there was no legal basis for the special master to conduct his own review of the classified records.
But Trump’s lawyers said in their application to the Supreme Court that it was essential for the special master to have access to the classified records to “determine whether documents bearing classification markings are in fact classified, and regardless of classification, whether those records are personal records or Presidential records.”
“Since President Trump had absolute authority over classification decisions during his Presidency, the current status of any disputed document cannot possibly be determined solely by reference to the markings on that document,” the application states.
It says that without the special master review, “the unchallenged views of the current Justice Department would supersede the established authority of the Chief Executive.” An independent review, the Trump team says, ensures a “transparent process that provides much-needed oversight.”
The FBI says it seized roughly 11,000 documents, including about 100 with classification markings, during its search. The Trump team asked a federal district judge in Florida, Aileen Cannon, to appoint a special master to do an independent review of the records.
Cannon subsequently assigned a veteran Brooklyn judge, Raymond Dearie, to review the records and segregate those that may be protected by claims of attorney-client privilege and executive privilege. She also barred the FBI from being able to use the classified documents as part of its criminal investigation.
The Justice Department appealed, prompting the 11th Circuit to lift Cannon’s hold on investigators’ ability to scrutinize the classified records. The appeals court also ruled that the department did not have to provide Dearie with access to the classified records.
Trump himself appointed Cannon to the federal court during his presidency. In fact, he appointed more federal judges than any president since John F. Kennedy.
For this reason, Cannon has faced liberal accusations of a partisan bias. Some liberals have accused her of enabling Trump to delay the case.
On the other hand, Trump’s team views the current Justice Department as politicized. So they see a need for an independent third party to inspect the documents for personal privacy, executive privilege and attorney-client privilege.
Trump’s lawyers submitted the Supreme Court application to Justice Clarence Thomas, who oversees emergency matters from Florida and several other Southern states. Thomas can act on his own or, as is usually done, refer the emergency appeal to the rest of the court. Late Tuesday the court said the government was being asked to respond to the petition by Oct. 11.
Thomas has previously come under scrutiny for his vote in a different Trump documents case, in which he was the only member of the court to vote against allowing the U.S. House committee investigating the Jan. 6, 2021, Capitol riot to obtain Trump records held by the National Archives and Records Administration.
The special master will need to review the documents by the deadline on Dec. 16, according to Fox News Digital. He has already extended the deadline by two weeks, Fox News reported.
He’s set to give a status update at a conference on Oct. 6.
The Horn editorial team and the Associated Press contributed to this article.